Judgment :- 1. The challenge in this original petition is against the proviso to R.43 in Chap.14-A of K.E.R. The above proviso was added to the Rule by way of an amendment under G.O.(P) No.185/86/G.Edn. dt. 22-11-1986 with effect from 22-4-1986. The facts leading to the case are as follows: 2. The High School, Thiruvalayannur under the management of the first respondent, is an aided school coming under the purview of Kerala Education Act, 1958 and the Rules issued thereunder. Under Ext. P2 order dt. 27-10-1986, the second respondent fixed the staff strength of the school for the academic year 1986-87 with effect from 14-7-1986. a total of thirty posts of High School Assistants in core subjects were sanctioned under Ext. P2. The above posts were classified as Social Studies 10, General Mathematics 10 and General Science 10(6+4). It is further provided in the order that appointment to the above posts shall be made only in accordance with the instructions issued by the Director of Public Instructions from time to time regarding the protections to be given to the HSAs in service and the re-appointment of HSAs relieved as per R.49 or 52 Ch.XIVA of K.E.R, or on account of termination of vacancies and who have got preference for re-appointment under R.51A Chap.14-Aof K.E.R. 3. While 10 posts were sanctioned for General Mathematics, the school had, during the relevant time, only 8 mathematics teachers. The first respondent therefore appointed the petitioner as H.S.A. (Maths) on 2-6-1986. The petitioner is fully qualified to hold the post of H.S.A.(Maths) in accordance with the qualification prescribed under Chap.31 of K.E.R. There were no protected teachers or R.51A claimants who could put forward a claim for the above post during the relevant time. There was no teacher in the U.P. Section also who was qualified to be appointed as H.S.A. (Mathematics). 4. Approval of appointment of the petitioner was refused by the 2nd respondent under Ext. P3 proceedings dt. 9-4-1987. The reason given for the above decision was that there were trained graduates among the U.P. School Assistants in the school and therefore one among them should be appointed in the post in which the petitioner was appointed, even though the U.P.S.A. was not having the qualification to hold the post of H.S.A. (Mathematics), in view of the provisions contained under G.O.Ms.43/86/ G.Edn, dt. 4-3-1986. 4-3-1986. Ext.P6 is a copy of the Government Order dated 4-3-1986 which was a pre-runner to the amendment to R.43 under Ext. P8 Govt. order dt. 22-11-1986. It is provided therein that the subject ratio of 1:1:1 should be insisted only in the case of fresh appointments and that in the case of promotion of R.43 claimants, the minimum subject requirement alone need be satisfied to safeguard the interest of trained graduates who are awaiting promotion. According to the 2nd respondent, the 8 mathematics teachers in the school were sufficient to handle mathematics classes upto 200 periods. During the relevant year, there were only 170 periods for mathematics in the school. Therefore, by applying the provisions contained under Ext. P6 Govt. order, promotion can be made from among U.P. School Assistants who are not having qualification for appointment to the post of H.S.A. (mathematics), while such trained graduates are available as U.P. School Assistants in the school, it was found that the appointment of the petitioner cannot be approved. Appeal filed by the petitioner before the third respondent was rejected on the same ground under Ext. P4 proceedings. The matter was further taken up before the Government at the instance of the petitioner and Ext. P5 is the reply received. Reference is made in Ext. P5 to the amendment to the Rules under Ext. P8 Govt. Order with effect from 22-4-1986. Exts. P3,P4 and P5 are under challenge in this original petition. 5. It is contended on behalf of the petitioner that the provisions contained under the proviso to R.43 of K.E.R. is not in consonance with the entire scheme of the Kerala Education Act and the Rules thereunder. The proviso would militate against the plenary provisions contained under S.10 and 11 of Kerala Education Act and it is also in conflict with the provisions contained under R.1 and 4 under Chap.14-A and also the provisions contained under Chap.31 of K.E.R. 6. According to respondents 2 to 8, Ext. P6 Govt. order dt. 4-3-1986 and the incorporation of the proviso to R.43 under Ext, P8 amendment are in the interest of trained graduates who are awaiting promotion in the U.P. Section of the school. According to respondents 2 to 8, Ext. P6 Govt. order dt. 4-3-1986 and the incorporation of the proviso to R.43 under Ext, P8 amendment are in the interest of trained graduates who are awaiting promotion in the U.P. Section of the school. They submit that even though the subject ratio evolved by the Director of Public Instruction is 1:1:1 in the core subjects, it is not necessary to follow the above ratio in the matter of promotion under R.43. When trained graduates are available for promotion under R.43, only minimum subject requirement need be looked into and not the subject ratio laid down by the Director of Public Instruction. According to the respondents, the proviso to R.43 is a beneficial provision for the teachers and there is no basis for the contention that it is in conflict with the provisions of the Act or the Rules.. 7. In order to appreciate the issue raised in this original petition, namely, a challenge against the proviso to R.43 under Chap.14-A, it is necessary to examine the scheme of the Kerala Education Act, 1958 and the Rules made thereunder in relation to the sanctioning of the posts and prescription of qualification to different teaching posts. S.10 and 11 of the Act read as follows: "10. Qualifications for appointment as teachers: The Government shall prescribe the qualifications to be possessed by persons for appointment as teachers in Government and private schools. 11. Appointment of teachers in aided schools: Subject to the rules and conditions laid down by the Government, teachers of aided schools shall be appointed by the managers of such schools from among persons who possess the qualifications prescribed under S.10". The above idea is reiterated in sub rule (1) of R.1 of Chap.14-A of K.E.R. The relevant portion of sub rule (1) of R.1 reads as follows: 1(1). Managers of Private Schools shall appoint only candidates who possess the prescribed qualification" From the above, it is clear that appointment to each post can be made only with due regard to the qualification prescribed for that particular post. Qualifications of private school teachers are prescribed under Chap.31 of K.E.R, which came into force on 5-12-1972. Sub-rule (1) of R.1 in the above chapter provides that teachers in private school shall have the educational and professional qualifications prescribed in that chapter. Qualifications of private school teachers are prescribed under Chap.31 of K.E.R, which came into force on 5-12-1972. Sub-rule (1) of R.1 in the above chapter provides that teachers in private school shall have the educational and professional qualifications prescribed in that chapter. Sub-rule (2) of R.2 in Chap.31 provides that for High School Assistants (Subjects), the necessary qualification is a degree in the concerned subject and B.Ed/ B.T./L.T. conferred or recognised by the Universities in Kerala. From the provisions hitherto referred as above, it can be seen that when a post of a High School Assistant in a particular subject is sanctioned, it can be filled up only by a person having a degree in the concerned subject and the training qualification. 8. The next question to be considered is how the posts are sanctioned and who is the authority to deckle as to the nature of the post to be sanctioned in the school. Sub-rule (1) of R.1 of Chap.14-A provides as follows: ".... As far as High School classes are concerned the appointment shall be made with due regard to the requirement of subjects as determined by Director of Public Instruction with reference to the curricula of studies...." Rule 4 lays down the manner in which Director has to give instruction in the matter. The Director is further empowered to issue necessary instructions for protecting certain categories of teachers while determining the requirement of subjects under R.4 which reads as follows: "(4) In determining the requirement of subjects the Director shall also issue such instructions as he may deem necessary for giving protection to teachers (i) who are in service and would have continued in service, and (ii) who stand relieved as per R.49 or 52 or on account of termination of vacancies and who would have been eligible for reappointment under R.51A had there been no change in the requirement of subject." It is seen from the above that no protection is contemplated under the above rule in respect of those persons who are entitled to promotion under R.43. R.43 Chap.14 reads as follows: "43. Subject to R.44 and 45 and considerations of efficiency and any general order that may be issued by the Government vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available. R.43 Chap.14 reads as follows: "43. Subject to R.44 and 45 and considerations of efficiency and any general order that may be issued by the Government vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available. Provided that in the case of promotions to the post of High School Assistant (subject) the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants." 9. The number of class divisions in a school is fixed on the basis of the number of students as provided under R.23 of Ch.VI. The above Rule provides that the maximum strength of a class division shall be 45, but excess admission upto 50 will be allowed. When there are more than 50 students a second division may be opened. When the strength exceeds 95, a third division and so on provided that the educational officer may, for sufficient reasons, allow retention of excess strength over 50 in a class division. Fixation of strength of teachers in the departmental and aided schools is to be made in accordance with the provisions contained under Chap.23 of K.E.R. The relevant provision of R.4 in the above chapter reads as follows: "4. In every High School there may be (i) One post of Headmaster; (ii) As many posts of High School Assistants as there are divisions in High School Class; (iii) xxx xxx xxx and (iv) As many posts of Lower and Upper Primary School Assistants as there are divisions in the Lower and Upper Primary School Classes:" The posts of specialist teachers and language teachers are determined under R.6B to H under the same chapter. R.12 provides that subject to availability of accommodation, the strength of teaching staff in each school shall be fixed by the educational officer in accordance with the above general provisions contained in the chapter once a year after finalising the number of divisions based on the effective strength of class as on the 6th working day from the re-opening date in June. 10. 10. In exercise of his powers under sub-rule (1) of R.I of Chap.14-A, the Director of Public Instruction had been issuing instructions regarding the nature of the teaching posts in the High School with due regard to the requirement of the subjects with reference to the carricula of studies. The instructions relevant for the year 1985-86 are contained in Circular No.H2-42115/84 dt.13-5-1985. As a matter of fact, it is the last general circular issued by the Director of Public Instruction in supersession of all the earlier circulars. The relevant portion of the above circular is as follows: Read 1. This Office circular No.H2.53358/72 dated 24-4-1972. 2. This Office Circular No.H2.144946/ 72 dated 31-1-1974. 3. This Office circular No.H2.67760/tf4 dated 22-7-1974. In this office circular cited as first paper above, it was ordered that the subject wise distribution of posts of H.S.As. for the subjects Social Studies, Mathematics and Science should be in the proportion of 3:4:5. The above subject ratio was introduced with effect from 15-7-1972 onwards. As per this office circular second cited the subject ratio for Social studies, Mathematics and Science was revised and fixed in the proportion of 1:1:1 with effect from the school year 1974-75 onwards. Subsequently several clarifications have been issued regarding the subject ratio. But it is found that these instructions and clarifications issued in the matter are not being followed strictly, in the matter of appointments of H.S. As. in core subjects in Government as well as in Aided High Schools. The objective of evolving and introducing the subject ratio for the appointment of H.S.As. in core subjects is to ensure that the subjects Science, Mathematics and Social Studies are taught by competent teachers who are fully qualified in these subjects and thereby enable the students to receive adequate and proper instruction in these subjects. With a view to achieving these objective, the following revised instructions are issued in the matter in supersession of all existing instructions on this subject. 1. It is decided that from the school year 1985-86 onwards, the distribution of posts of II.S.As. in core subjects, namely Social Studies, Mathematics and Science will be in the proportion of 1:1:1 in Government and Aided High Schools. This ratio shall also be followed in unaided recognised High Schools in the State. The break up for Physical and Natural Science will be in the ratio 3:2. 2. in core subjects, namely Social Studies, Mathematics and Science will be in the proportion of 1:1:1 in Government and Aided High Schools. This ratio shall also be followed in unaided recognised High Schools in the State. The break up for Physical and Natural Science will be in the ratio 3:2. 2. In the case of schools where posts of H.S. As. remain unclassified after distribution of posts for Social Studies, Mathematics and Science in the proportion 1:1:1 such remaining posts should be filled up by giving first Preference for Science and second preference for Mathematics as illustrated in this office circular cited as 2nd paper above. 3. The practice of giving permissive sanction to follow the subject ratio 3:4:5 will be dispensed with from 1985-86 onwards. 4. Since appointment includes: (1) appointment by promotion, (2) appointment by transfer and (3) appointment by direct recruitment, the subject ratio 1:1:1 should be strictly followed in all the above three methods of appointment of H.S.As. 5. In the case of Government Schools, while fixing the staff as per R.12A Chap.23 K.E.R. the District Educational Officer should indicate in the staff fixation order the distribution of post of H.S.As. in the ratio of 1:1:1 and the break up of H.S.As. (Science) in the ratio of 3:2. The details of deficiency of H.S. As. and of excess staff in any of the core subjects should be reported to the Deputy Directors concerned for suitable adjustment. 6. Intra-district and inter-district transfers of H.S.A, in core subjects, promotions of primary school teachers as H.S.As. and initial appointments of H.S.As. in core subjects by recruitment through Public Service Commission or Employment Exchange should be effected only in accordance with the subject ratio of 1:1:1 and the internal ratio of 3:2 for H.S.As for science. 7. In the case of Aided and Unaided recognised High Schools, the District Educational Officer concerned should bring these revised instructions to the notice of the managers before 31-5-1985 positively and their acknowledgments obtained. 8. The District Educational Officers should invariably note in the Staff fixation orders relating to the Aided Schools the distribution of post of H.S.As. in core subjects in the ratio of 1:1:1 for Social Studies, Mathematics and Science and in the internal ratio of 3:2 for posts of U.S. As. in Science. 9. The Managers should make fresh appointments of H.S.As. The District Educational Officers should invariably note in the Staff fixation orders relating to the Aided Schools the distribution of post of H.S.As. in core subjects in the ratio of 1:1:1 for Social Studies, Mathematics and Science and in the internal ratio of 3:2 for posts of U.S. As. in Science. 9. The Managers should make fresh appointments of H.S.As. effect promotions of Primary School teachers, and intra-management and inter-management transfer of H.S.As. in core subjects only in accordance with the subject ratio, recorded in the staff fixation orders of the District Educational Officers. 10. The existing staff should not however be retrenched for satisfying the subject ratio if they are otherwise eligible to continue. The excess hands in a school in any of the core subjects may be distributed among the schools under the same management by suitable adjustments. If there is only one school under a management, the excess hands in any one of the core subjects may be retained in the school if they are otherwise eligible to be adjusted against future vacancies. 11. New appointments of H.S. As. for core subjects and re-appointments of retrenched H.S.As. of Aided High Schools under R.51A Chap.14-A K.E.R. should be made observing strictly the subject ratio." 12. The combined effect of the above provisions is as follows. The number of divisions to be sanctioned in a school is to be decided on the students' strength as provided under R.23 of Chap.7, the number of H.S.As to be decided on the basis of number of divisions as provided under R.4 of Chap.23, the nature of the teaching posts are to be decided by the Director of Public Instruction with reference to the carricula of studies as provided under sub-rule (1) of R.1 of Chap.14-A, which instruction he has given under the circular dt.13-5-1985 as 1:1:1 between the core subjects with internal ratio of 3:2 between physical science and natural science and that appointment shall be made with due regard to the qualification prescribed in respect of each post under Chap.31 of K.E.R. 13. If the above provisions are taken into consideration, there is no illegality in the appointment of the petitioner. 30 posts are sanctioned in the school for the academic year 1986-87 out of which 10 are set apart for H.S.A. (Mathematics). If the above provisions are taken into consideration, there is no illegality in the appointment of the petitioner. 30 posts are sanctioned in the school for the academic year 1986-87 out of which 10 are set apart for H.S.A. (Mathematics). There were only 8 Mathematics teachers in the school and when the petitioner was appointed as 9th Mathematics teacher, he was having the qualification prescribed under Chap.31 to hold the post of H.S.A. (Mathematics). But the contention raised on behalf of respondents 2 to 8 is that irrespective of the fact that 10 posts of H.S.A. (Mathematics) were sanctioned under the Ext.P2 staff fixation order and there was deficiency of 2 mathematics teachers in the school during the relevant time, the Manager should have promoted a trained graduate who was working as a U.P.S.A. but not qualified to hold the post of H.S.A. (Mathematics) in view of the provisions contained under Ext.P6 Govt. Order and Ext.P8 amendment to R.43 incorporating a proviso. On the authority of a Division Bench decision of this Court in Cheriyan v. State of Kerala, 1990 (2) KLT 481, Ext.P6 executive order cannot be relied on by the respondents as the instructions given by the Director in his circular dt.13-5-1985. to apply a ratio of 1:1:1 between High School Assistants, core subjects is in exercise of his statutory power. But respondents 2 to 8 would contend that in this case the dictum in the above decision has no application since Rule itself has been amended by Ext.P8 and a provision has been brought in under the statutory rules to the effect that when promotions are made to the post, of H.S.A. (subject), "only the minimum subject requirement need be satisfied". 14. It may be that the dictum laid down in Cheriyan's case is not a full answer to the situation here since the Government has acted by introducing a statutory rule. Therefore it is necessary to examine the larger contention taken by the petitioner that the proviso to R.43 is in conflict with the provisions of the Act and also to certain provisions in other Rules. 15. No amendment is made to the provisions contained under R.4 of Chap.23 prescribing a different mode to fix the total number of H.S.As. Even now, there shall be as many posts of H.S.As as there are divisions in the High School Classes. 15. No amendment is made to the provisions contained under R.4 of Chap.23 prescribing a different mode to fix the total number of H.S.As. Even now, there shall be as many posts of H.S.As as there are divisions in the High School Classes. There is no amendment to sub Rule (1) of R.1 prescribing an authority other than Director of Public Instruction to decide upon the nature of the posts sanctioned in the High School. R.4 of Chap.14-A has not undergone an amendment including R.43 claimants, as a class entitled to protection while determining the requirement of subjects. The instruction given by the Director of Public Instruction tinder circular dt.13-5-1985 is to distribute the total number of posts of H.S.As. (subjects) in the ratio of 1:1:1 between Mathematics, Social Studies and Science. Therefore, it is seen from Ext.P2staff fixation order that on the basis of students' strength, 30 divisions were granted to the school and 30 posts of H.S.As. (subjects) were also sanctioned. These posts were sanctioned by applying the ratio of 1:1:1. There is no reference to minimum subject ratio in Ext.P2 order of staff fixation. In the light of the provisions which were already referred, the 2nd respondent can fix the number of posts and distribute them in the core subjects only in the manner in which it was done in Ext.P2. Then, to compel the first respondent-Manager to appoint in the post of H.S.A. (mathematics) by promoting a U.P.S. A., who is not a mathematics graduate, would amount to compelling the Manager to appoint a person who does not possess the qualification prescribed under Chap.31 of K.E.R, by the Government in exercise of its power under S.10. From the above point of view, petitioner is justified in contending that the proviso to R.43 is in conflict with the plenary provisions under the Act as well as other provisions in the Rules. 16. The proviso to R.43 cannot have any legal effect from another point of view also. According to the proviso, in the case of promotions to the post of H.S.A. (subject), the minimum subject requirement alone need be satisfied. One has to examine what is meant by 'minimum subject requirement'. 16. The proviso to R.43 cannot have any legal effect from another point of view also. According to the proviso, in the case of promotions to the post of H.S.A. (subject), the minimum subject requirement alone need be satisfied. One has to examine what is meant by 'minimum subject requirement'. Learned counsel for the petitioner would submit that there is no such term explained or defined under the K.E.R. In the counter-affidavit filed on behalf of the 6th respondent, an attempt is made to explain the above term. She has referred to and produced as Ext.R6(b), an order dt.20-2-1965 issued by the Director of Public Instruction. Para.4 of the above Order reads as follows: "In regard to subject requirements the following instructions may be borne in mind while sanctioning posts of Graduate teachers in High School classes. A minimum number may be fixed for each of the core subjects and the remaining posts filled up as mentioned below. Since the number of periods allotted for each of the core subjects is five per week, there will be 50 periods for each of the core subjects in a High School where there are 10 divisions. The total minimum number of teachers permissible for these divisions is 10. The minimum number of teachers required for each core subject is two. While sanctioning the establishment, such a minimum number should be fixed for each core subject." She has also produced copy of another circular dt. 9-1-1979 as Ext.R6(c). A reading of Ext.R6(c) would show that the above circular was issued in accordance with the directions of the Government under its letter dt. 18-11-1978. It contained a provision that in the case of qualified U.P.S. As when promoted as H.S.As, it will be enough if minimum subject requirements are satisfied. Thereafter Ext.R6(d) dt.4-7-1979clarified the intention of the circular Ext.R6(c) in the following manner: "The intention of the Circular dated 9-1-1979 is that promotion under R.43, Chap.14-A, should not be denied to qualified UPSA on the plea that their promotion would not keep the ratio 1:1:1 or 3:4:5 intact and that it is enough if there are a minimum of 25 periods of work per teacher for purpose of promotion to the post of H.S.A." It is thereafter admitted in the counter affidavit that in the latest circular dated 13-5-1985, there is no such specific provision exempting R.43 claimants from 1:1:1 ratio. The allegation is that the Director has issued the latest circular without adverting to the previous circulars. 17.I do not find any merit in the above criticism against the circular dt.13-5-1985. In any view of the matter, the circular dt. 13-5-1985 has been issued in supersession of all existing instructions on the subject, namely, requirement of subjects in the matter of appointment to the post of H.S.As. The circular contains a specific provision that in the appointment of H.S. As. (1) by promotion, (2) by transfer and (3) by direct recruitment, subject ratio 1:1:1 should be strictly followed. The only provision now in force regarding subject requirement is the one which contained in the circular dt. 13-5-1985. Exts.R6(b), (c), and (d) are no longer in force. Thus, the minimum subject requirement referred in the proviso could not be taken as the one which is provided under the above mentioned three circulars, which are no longer in force. 18. As a matter of fact, Ext.R6(b) circular dt.20-2-1965 and Ext.R6(c) circular dtd.9-1-1979 had been subject matter of decisions of Division Bench of this Court. In The Manager, S.N. School, Parur and another v. The Secretary to Government and others, ILR 1981 (2) Ker. 638, a Division Bench of this Court has held that the circular dt.20-2-1965 cannot be deemed to be in force after Chap.31 prescribing qualifications for private school teachers was added to the Educational Rules from 5th December, 1972. Ext.R6(c) circular dt. 9-1-1979 was considered by another Division Bench in W.A.Nos. 297 & 403/84 and it was held that even if minimum subject requirement is satisfied, promotion cannot be made in violation of the subject ratio 1:1:1. In Thulasi Bhai v. State of Kerala & Others, 1986 KLT 616, a third Division Bench followed the decision in 1981 (2) ILR Ker. 638 and held that the question of filling up the vacancy by way of promotion arises only if the candidate is duly qualified for the sanctioned post. The circulars which take a contrary view cannot therefore be regarded as having any legal efficacy. These are all decisions which were rendered before the proviso was added to R.43 in Chap.14-A. 19. Subsequent to the amendment to R.43, the question again came up before a Division Bench in W.A.517/92. An examination of the above judgment would show that the Bench has proceeded on certain admitted facts. These are all decisions which were rendered before the proviso was added to R.43 in Chap.14-A. 19. Subsequent to the amendment to R.43, the question again came up before a Division Bench in W.A.517/92. An examination of the above judgment would show that the Bench has proceeded on certain admitted facts. The relevant portion of the judgment is quoted below: "In the normal course, according to the Rules, the senior-most Upper Primary Schools Assistants in the same subject, of course, have to be appointed as High School Assistants, but this is subject to certain exceptions made in the Rules which permit Upper Primary School Assistants not having the degree in the same subject to be also promoted as High School Assistants if they are seniors. At one time, the Rules required not only that the minimum subject requirements should be satisfied but also that the person to be promoted should be a senior in regard to the same subject. But the same was amended by the Government by issuing statutory rules made under S.36 of the Kerala Education Act, 1958. R.43 of Chap.14-A of the Kerala Education Rules, 1959 was amended by the notification issued in G.O.(P) 185/86/G. Edn. dated 22-11-1986. The amendment was brought into force on 22-4-1986 It is, therefore, clear from the above said amendment that in the case of promotions to the post of High School Assistant (subject) the minimum subject requirement alone need be satisfied and if that is so, the senior-most High School Assistant though he or she is not an Upper Primary School Assistant in the same subject, he or she should be promoted. In the present case, the fact that the minimum subject requirements have been satisfied is admitted" The Division Bench therefore held that in the light of the admitted factual position that minimum subject requirement was satisfied, that is to say if enough number of H.S.As. dealing with the same subject are available, promotions should go according to the seniority, irrespective of the subject requirement. No argument was placed either before the learned Single Judge or before the Division Bench in the above case that the circulars under which minimum subject requirement, namely, one teacher for 25 periods of that particular subject are no longer in force in the light of the circular dt.13-5-1985. No argument was placed either before the learned Single Judge or before the Division Bench in the above case that the circulars under which minimum subject requirement, namely, one teacher for 25 periods of that particular subject are no longer in force in the light of the circular dt.13-5-1985. Apart from the above, there was no challenge against the proviso added to R.43 by the amendment in the year 1986 being in conflict with the plenary provisions in the Act and other provisions in the Rules. Therefore, it has to be taken that the issues raised in this original petition are not covered by the judgment of the Division Bench in W.A.No.517 of 1992. 20. Learned counsel appearing on behalf of the respondents brought to my notice the judgment of a learned Single Judge in O.P.6282/87 where a challenge against the proviso to R.43 of Ch.X1V-A was repelled. A reading of the above judgment would not show that the challenge against the proviso to R.43 was based on any of the grounds which are relied on by the petitioner in the present original petition. Therefore, the respondents cannot be heard to submit that the present original petition, is either to be dismissed or to be referred for consideration by a Bench. It was also submitted at the Bar that the above judgment is under appeal in W.A.No.1111 of 1991. 21.This case was adjourned on several occasions for enabling the Addl. Advocate General II Sri V.K. Beeran to produce the files relating to issue of Ext.P8 and to address arguments on the basis of the files. But ultimately the files were not produced and it was submitted that no further arguments were to be addressed on the basis of the files. 22. In the light of the above discussions, I am inclined to accept the contentions raised by the petitioner that the minimum subject requirement referred in the proviso to R.43 is a subject requirement laid down in the circular dt.13-5-1985 as 1:1:1 between the core subjects, namely mathematics, science and social studies. 22. In the light of the above discussions, I am inclined to accept the contentions raised by the petitioner that the minimum subject requirement referred in the proviso to R.43 is a subject requirement laid down in the circular dt.13-5-1985 as 1:1:1 between the core subjects, namely mathematics, science and social studies. Any other interpretation to the term'minimum subject requirement' would make the proviso to R.43 unenforceable in law as it will be in conflict with the provisions contained under S.10 and 11 of the Kerala Education Act read with the provisions contained under R.1 and 4 under Chap.14-A and also the provisions contained under Chap.31 of K.E.R. In the light of the above conclusion which I am inclined to reach, I am not going into the merit of the other contentions raised by the petitioner as below. 23. Under sub-rule (1) of R.8 of Chap.14-A K.E.R. appointment order shall be sent within 15 days from the date of effect of the staff fixation order by which the additional posts are sanctioned or within fifteen days from the date of joining duty of the candidates, whichever is later. Under sub-rule (2), the Educational Officer on receipt of the appointment order, may approve the same as expeditiously as possible, at any rate, not later than 30 days from the date of receipt of the appointment order. According to the petitioner, if the educational authorities had acted in time as per the above rules, his. appointment would have been approved before Ext.P8 Govt. order dt. 22-11-1986 was issued amending R.43 by adding the proviso w.e.f. 22 - 4 -1986. At the time when the petitioner was appointed, it was only Ext.P6 executive order dt.4-3-1986 which provided that in the case of promotion of R.43 claimants minimum subject requirement alone need be satisfied. The executive order could not have made any adverse effect on his appointment in the light of the dictum laid down by this Court in Cheriyan's case. 24. The petitioner has a further contention that the retrospective effect given to the amendment to R.43 under Ext.P8 Govt. order cannot adversely affect him by taking away the vested right which he had acquired on his appointment on 2-6-1986. When Ext.P2 staff fixation order was issued, manager made the appointment in accordance with the directions contained there in and in accordance with the rules then available. order cannot adversely affect him by taking away the vested right which he had acquired on his appointment on 2-6-1986. When Ext.P2 staff fixation order was issued, manager made the appointment in accordance with the directions contained there in and in accordance with the rules then available. Any subsequent amendment cannot take away petitioner's right to continue in the post as per the appointment. Yet another contention taken by the petitioner is that since Ext.P8 was published only in the Gazette dt.6-1-1987, it can be deemed to have come into force only on 6-1-1987. In support of the above contention, he relies on a decision of a Full Bench of this Court in R.K. V. Motors & Timbers (P) Ltd. v. Regional Transport Officer, 1982 KLT 166 (FB). As mentioned earlier, I am not going into the merits of these arguments in the light of the conclusion which I have arrived at regarding the validity of the proviso to R.43. 25. On examining the various provisions of the Act and the Rules, it is seen that the main thrust of the provisions is on providing proper educational facilities to the students in the State. Appointments are to be made with due regard to the requirement of subjects as determined by the Director of Public Instruction with reference to the carricula of studies. It is on the basis of the above consideration, the ratio between core subjects had been fixed by the Director as 1:1:1. Even by a mere reading of Ext.P8, it is seen that the amendment was brought only for the purpose of safeguarding the interest of trained graduates who are awaiting promotion as High School Assistants and not in the interest of the students. Thus, in order to provide promotion chances to the trained graduates who are working in the U.P. Section, the interest of the students is being sacrificed by reducing the number of teachers from the ideal situation to that of minimum requirement. This will be the effect, if the interpretation sought to be given by the respondents to the term'minimum subject requirement', is accepted. It is therefore not possible to accept the contention raised by the respondents, taking into consideration the' entire scheme of the Kerala Education Act and the Rules issued thereunder. This will be the effect, if the interpretation sought to be given by the respondents to the term'minimum subject requirement', is accepted. It is therefore not possible to accept the contention raised by the respondents, taking into consideration the' entire scheme of the Kerala Education Act and the Rules issued thereunder. Therefore, the proviso to R.43 has to be read down and it should be understood as providing that even when vacancies in the post of H.S.As in core subjects are filled up by promotion, the ratio of 1:1:1 shall be applied in core subjects and only a teacher who is qualified to hold the post in the particular subject in accordance with the provisions contained under Chap.31 of K.E.R. shall stand promoted. 26. Petitioner is admittedly qualified to hold the post of H.S.A. (mathematics). He was promoted in the vacancy of a H.S.A. (mathematics) under Ext.P2 staff fixation order. His appointment is therefore liable to be approved. In the result, Exts.P3, P4 and P5 orders rejecting approval of petitioner's appointment are set aside. The 6th respondent, who is a graduate in natural science and therefore not qualified to the post of H.S.A. (mathematics) will be relieved forthwith and the petitioner will be allowed to join duty as H.S.A. (mathematics) in the school of the first respondent. Petitioner will be treated as having been appointed to the post of H.S.A. (mathematics) w.e.f. 2-6-1986 and will be allowed all consequential service benefits except the arrears of pay and allowances. The original petition stands allowed as above.